Written by Dr Mandeep Dyal, Family Law Barrister
The decision of Mostyn J in the matter of Re N (a child)  EWFC 35 was handed down on 1st May 2020. The matter relates to an application for an inward return order in respect of a child removed from the jurisdiction during the Covid-19 pandemic and shortly prior to the national lockdown announced on 23rd March 2020. Mostyn J followed the guidance set out by the Court of Appeal in Re S (Abduction: Hague Convention or BIIa)  EWCA Civ 1226 and deferred the decision on the substantive application until after the conclusion of the Hague Convention proceedings in Greece.
Prior to the decision in Re N , the Court of Appeal case of Re S (Abduction: Hague Convention or BIIa)  EWCA Civ 1226 provided guidance as to the stage at which an inward return order should be made, where the child has been taken to an EU member state. Moylan LJ, amongst other matters, provided guidance that he did not consider ‘that a “particularly compelling reason” would be required before it would be appropriate for a court to make a return order summarily at the outset of proceedings.’ However, he did consider that ‘absent a good reason to the contrary, the better course is for the court to defer making a return order until an application under the 1980 Convention has been determined in the other Member State. As Black LJ said this is how the return of a child is “expected to be dealt with”. Once such a determination has been made the court can then decide what order to make pursuant to Article 11(8) of the BIIa’ [para 47].
Moylan LJ set out the advantages of deferring the making of a return order until the conclusion of 1980 Convention proceedings, including that:
- A higher degree of direct assistance is likely to be provided by the member state to a party bringing Hague Convention proceedings than in respect of an application for enforcement of an order.
- There is likely to be less delay in the matter being determined, as there is a duty on member states to determine 1980 Convention proceedings within 6 weeks.
- Article 11 provides a tailor-made procedure through which the courts of member states engage with the case and with each other.
- The Convention provides an expedited enforcement procedure.
There is a burden on the applicant for an inward return order to justify why the better course of deferring the application until the conclusion of the Hague Convention proceedings should not apply.
Re N  concerned the father’s application for an inward return order in respect of the parties’ 11 year old son, N. The parties were Greek. They were married in 2009. The relationship broke down in 2017 and it was agreed thereafter that N should live with the respondent mother. The father moved to London in 2017 and the mother and N followed in January 2018. The parties lived at the same property, but did not reconcile the relationship. N became habitually resident in London, attending school and becoming fully socially assimilated in London.
On 20th March 2020, in the midst of the global Covid-19 pandemic and three days prior to the government announcing the national lockdown to prevent the spread of Covid-19, the mother unilaterally removed N to the maternal grandmother’s home on the Greek island of Paros. She believed that N would be safer in Paros as there had at that date been no known Covid-19 infections on the island.
The father instructed a Greek lawyer and made an application, via email, under the 1980 Hague Convention in Greece.
Thereafter, on 9th April, the father made a without notice application to the High Court seeking several orders, including an immediate inward return order. The matter was listed for an on notice directions hearing via Zoom on 28th April 2020. The father sought:
- a declaration that N is habitually resident in England and Wales and was on 21st March 2020;
- a specific issue order for the mother to return N to England forthwith;
- a prohibited steps order preventing the mother, on return, from removing N from England until the conclusion of the proceedings;
- a specific issue order requiring the mother to lodge the child’s passport and travel documents with the father’s solicitors until the conclusion of the proceedings;
- a prohibited steps order preventing the mother from applying for a travel document or passport with the Greek embassy in England and Wales; and
- an order for N to live with the father until the conclusion of the proceedings.
The hearing proceeded via Zoom and both parties were able to participate. On the morning of the hearing, the father produced a statement from his Greek lawyer which set out that a declaration that N was habitually resident in England and Wales on 21st March and remains so would assist the procedure in Greece and would ‘increase the chances’ of the father’s application succeeding. It further confirmed that applications under the Hague Convention would usually take about four months to be concluded at first instance, with a further three months in the event of an appeal. However, that there would inevitably be a backlog due to the Coronavirus and further delays may therefore arise. Having said that, the father had applied to the Greek court on 16th April for an order preventing the mother from ‘flying away’ from Paros to a place other than England, which had been listed for a hearing on 28th May 2020, showing that the Greek courts were in fact functioning relatively efficiently.
The mother had not had the opportunity to formally respond to the statement by the father’s Greek lawyer. However, her position was set out in an email to the father’s solicitor dated 24th April. In that email, she confirmed that she had made it known to the father that she had no intention of remaining in Greece permanently and that her main reason for taking N to Greece was to do whatever she could to keep N safe from the Coronavirus. She further set out that Paros is ‘naturally isolated from the mainland and has its own medical facilities. It is absolutely safe for until now there were zero (0) incidents of corona virus contamination’ and she therefore believed Paros to be much safer than ‘the much more densely populated area of Barking / outskirts of London, given the numbers of people affected and die in London on a daily basis’. She further confirmed that since her arrival in Greece, the country had closed its borders and banned travelling completely and therefore she did not consider it possible to return to England at that time even if she wanted to.
Mostyn J commented that he would be surprised, in light of that email, if a Greek court would conclude that the mother should not in principle return N to England but it would want to be satisfied when fixing a date for return, that it was completely safe for the mother and N to travel and that they would be safe on their return.
The question for the court was whether to pre-empt the decision of the Greek court and determine the father’s application, or to follow the guidance set out by the Court of Appeal in Re S and defer the decision until after the conclusion of the Hague Convention proceedings in Greece. Mostyn J determined that the latter was the correct approach. He could not discern any good reason to depart from it. The Greek courts were functioning relatively efficiently and, if the Greek court made an order for the child’s return to England, that court would be the only actual court with the power to enforce it. He therefore ordered that the father’s application would stand adjourned until the conclusion of the Hague Convention proceedings in Greece. The court did, however, make the declaration of habitual residence sought by the father. There was no serious opposition to this by the mother, nor could she have had on the basis of the facts.
Having thus concluded, Mostyn J commented that, had he been minded to accede to the father’s request to have his application heard prior to the conclusion of the Greek proceedings, he would nevertheless not have made the substantive orders sought by the father at that stage. The matter had been listed for directions with a time estimate of merely one hour, the mother had not had the opportunity to file any formal evidence and safeguarding checks were incomplete. Mostyn J indicated that had he decided to hear the father’s substantive application, he would have listed the matter for a contested hearing, with the opportunity for the mother to file formal evidence. He would also have directed that a High Court Cafcass Officer should complete safeguarding checks and interview N via Zoom to establish his wishes and feelings.
The decision in Re N is of particular interest as it has taken place within the current international public health pandemic. It highlights a number of novel points.
First, it raises questions as to whether courts will be more willing to make inward return orders prior to the conclusion of Hague Convention proceedings in the relevant member state. On the facts of Re N, the approach taken by Mostyn J was undoubtedly correct. The decision followed the guidance provided by Moylan LJ in Re S. It is clear from the Judgment that the Greek courts were still functioning efficiently, despite the current health pandemic, and therefore the reasoning behind Moylan LJ’s guidance in Re S in respect of delay and expedited enforcement procedures was still applicable and relevant. It is not certain, however, whether the same decision would necessarily have been reached had the Greek courts not been functioning efficiently, resulting in significant likely delay in the 1980 Convention proceedings being able to conclude.
This will be a potential issue in future applications for inward return orders during the Covid-19 pandemic. It is likely that there will be significant delays in determining 1980 Convention applications by the courts of certain member states. A court may well be persuaded that this constitutes ‘a good reason to the contrary’ within the meaning of Moylan LJ’s guidance, thus justifying determining the inward return application prior to the conclusion of the 1980 Convention proceedings. This is particularly so given the general principle in s.1(2) of the Children Act that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child. The facts and circumstances of each case will be different and it is an issue that will of course need to be considered on a case by case basis.
Second, the case demonstrates that exceptional scenarios are likely to occur during the pandemic, raising questions about what is in fact in a child’s best interests given the risks posed by Covid-19.
Finally, the Judgment highlights the increased significance placed on the use of technologies, such as Zoom, during lockdown not just for the purposes of conducting hearings but also in order to facilitate the role of Cafcass, including the completion of wishes and feelings assessments of children.
The extraordinary circumstances of the current public health crisis will continue to give rise to difficult and novel situations within Children Act proceedings and Family Law more generally. For now, these matters will need to be dealt with on a case by case basis.
Mandeep Dyal is a family law practitioner and accepts instructions in private law children matters, financial remedy proceedings on divorce and applications under the Family Law Act 1996.